Citation Nr: 0719729
Decision Date: 06/29/07 Archive Date: 07/05/07
DOCKET NO. 05-29 144 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUES
1. Entitlement to an initial evaluation in excess of 30
percent for tinea versicolor.
2. Entitlement to service connection for residuals of
generalized viral infection, (claimed as residuals of spinal
meningitis).
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
Catherine Cykowski, Associate Counsel
INTRODUCTION
The veteran had active service from April 1955 to September
1957.
This matter comes before the Board of Veterans' Appeals on
appeal from a May 2005 rating decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.
In October 2006, the veteran testified at a videoconference
hearing before the undersigned Veterans' Law Judge.
FINDINGS OF FACT
1. Tinea versicolor affects less than 40 percent of the
entire body or exposed areas and does not require constant or
near-constant systemic therapy such as corticosteroids or
other immunosuppressive drugs.
2. There is no evidence of a nexus between a generalized
viral infection treated during service and any current
disability.
CONCLUSIONS OF LAW
1. An initial evaluation in excess of 30 percent for tinea
versicolor is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West
2002); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7806
(2006).
2. Service connection for residuals of generalized viral
infection, (claimed as residuals of spinal meningitis) is not
established. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002);
38 C.F.R. §§ 3.159, 3.303 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. VA's Duties to Notify and Assist
On November 9, 2000, the Veterans Claims Assistance Act of
2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5106, 5107, 5126 (West 2002), became law. Regulations
implementing the VCAA were then published at 66 Fed. Reg.
45,620, 45,630-32 (August 29, 2001) and are now codified at
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2006). The
VCAA and its implementing regulations are applicable to this
appeal.
The duty to notify under the VCAA requires VA to notify the
claimant and the claimant's representative, if any, of the
information and medical or lay evidence that is necessary to
substantiate the claim. In Pelegrini v. Principi (Pelegrini
II), 18 Vet. App. 112, 119-20 (2004), the Court specifically
held that the VCAA requires VA to provide notice that informs
the claimant of any information and evidence not of record
(1) that is necessary to substantiate the claim, (2) that VA
will seek to provide, and (3) that the claimant is expected
to provide. In what can be considered a fourth element of
the requisite notice, the Court further held that, under 38
C.F.R. § 3.159(b), VA must request the claimant to provide
any evidence in his possession that pertains to the claim.
Id. at 120-21. The Court has indicated that notice under the
VCAA must be given prior to an initial unfavorable decision
by the agency of original jurisdiction. Id.
The VCAA and its implementing regulations provide that VA
will assist a claimant in obtaining evidence necessary to
substantiate a claim. Under these provisions, VA is required
to obtain service medical records and relevant VA healthcare
records and must make reasonable efforts to help the veteran
obtain other relevant medical records. The duty to assist
also requires VA to provide the claimant with a medical
examination or a medical opinion when such an examination or
opinion is necessary to make a decision on a claim. 38
U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R § 3.159 (2006).
The Court has mandated that VA ensure strict compliance with
the provisions of the VCAA. Quartuccio v. Principi, 16 Vet.
App. at 183 (2002). In this case, as explained below, VA has
strictly complied with the VCAA by providing the veteran
adequate notice and assistance with regard to the claims on
appeal. Accordingly, the veteran is not prejudiced by the
Board's decision to proceed with the disposition of this
appeal. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).
During the pendency of this appeal, on March 3, 2006, the
Court issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which
held that the VCAA notice requirements of 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements
of a service connection claim. Those five elements include:
1) veteran status; 2) existence of a disability; 3) a
connection between the veteran's service and the disability;
4) degree of disability; and 5) effective date of the
disability. The Court held that upon receipt of an
application for a service-connection claim, 38 U.S.C.A. §
5103(a) and 38 C.F.R.
§ 3.159(b) require VA to review the information and the
evidence presented with the claim and to provide the claimant
with notice of what information and evidence not previously
provided, if any, will assist in substantiating or is
necessary to substantiate the elements of the claim as
reasonably contemplated by the application. Dingess/Hartman
at 488. Additionally, this notice must include notice that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
Id.
A. Duty to Notify
In a May 2004 letter, the RO provided the veteran with VCAA
notice on his claim for service connection for residuals of a
generalized viral infection. This letter notified the
veteran of the information and evidence required to
substantiate a claim for service connection. This letter
also explained VA's duty to assist with the development of
the veteran's claim and stated what types of evidence VA
would be responsible for obtaining and what type of evidence
VA would assist the veteran in obtaining. This letter
advised the veteran to submit any relevant evidence in his
possession.
A November 2004 letter provided the veteran with VCAA notice
in regard to his claim for service connection for tinea
versicolor. This letter also explained VA's duty to assist
under the VCAA, stated what evidence VA would be responsible
for obtaining and what evidence VA would assist the veteran
in obtaining and advised the veteran to submit any relevant
evidence in his possession.
These notices complied with the timing requirements set forth
in Pelegrini, as they were provided prior to the initial
unfavorable rating decision.
The veteran's claim for a higher initial rating for tinea
versicolor arises from a May 2005 notice of disagreement
which took issue with the 10 percent rating assigned for the
condition. Pursuant to VAOPGCPREC 8-2003 (December 22,
2003), 38 U.S.C.A. § 5103(a) does not require VA to provide
notice of the information and evidence necessary to
substantiate a newly raised claim. As noted above, the
veteran took issue with the original 10 percent disability
evaluation assigned for tinea versicolor. According to
VAOPGCPREC 8-2003, if in response to notice of its decision
on a claim for which VA has already given the section 5103(a)
notice, VA receives a NOD that raises a new issue, section
7105(d) only requires VA to take proper action and issue a
Statement of the Case (SOC) if the disagreement is not
resolved. The RO properly issued a July 2005 SOC and July
and a February 2006 Supplemental Statement of the Case
(SSOC), which contained the pertinent laws and regulations,
including the schedular criteria, and explained why the
veteran's claim for an increased rating was denied. Thus, a
VCAA notification letter is not necessary for the issue of
entitlement to a higher initial evaluation for tinea
versicolor.
The Board finds that the duty to notify has been satisfied.
All the VCAA requires is that the duty to notify is
satisfied, and that appellants be given the opportunity to
submit information and evidence in support of their claims.
Once this has been accomplished, all due process concerns
have been satisfied. See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996).
B. Duty to Assist
The RO made reasonable and appropriate efforts to assist the
veteran in the development of these claims. The relevant
evidence, including service medical records, post-service VA
medical records and private records identified by the veteran
has been associated with the claims file. The veteran has
not identified any outstanding evidence that is relevant to
these claims.
The veteran has also been afforded VA examinations for the
claims on appeal, in accordance with the requirements of §
3.159(c)(4). The Board concludes that the requirements of
the duty to assist have been satisfied in this case, and the
Board may proceed to consider the veteran's claims.
II. Analysis of Claims
A. Increased Rating for Tinea Versicolor
Disability ratings are determined by applying the criteria
set forth in VA's Schedule for Rating Disabilities, which is
based on the average impairment of earning capacity.
Individual disabilities are assigned separate diagnostic
codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1
(2006). If two evaluations are potentially applicable, the
higher evaluation will be assigned if the disability picture
more nearly approximates the criteria required for that
rating; otherwise, the lower rating will be assigned. 38
C.F.R. § 4.7 (2006).
Where an award of service connection for a disability has
been granted and the assignment of an initial evaluation for
that disability is disputed, separate evaluations may be
assigned for separate periods of time based on the facts
found. In other words, the evaluations may be "staged."
Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). The
degree of impairment resulting from a disability is a factual
determination in which the Board must focus on the current
severity of the disability. Francisco v. Brown, 7 Vet. App.
55, 57-58 (1994).
In both claims for an increased rating on an original claim
and an increased rating for an established disability, only
the specific criteria of the Diagnostic Code are to be
considered. Massey v. Brown, 7 Vet. App. 204, 208 (1994).
A disability may require re-evaluation in accordance with
changes in a veteran's condition. In determining the level
of current impairment, it is thus essential that the
disability be considered in the context of the entire
recorded history. 38 C.F.R.
§ 4.1 (2006).
Except as otherwise provided by law, a claimant has the
responsibility to present and support a claim for benefits
under laws administered by the Secretary. The Secretary
shall consider all information and lay and medical evidence
of record in the case before the Secretary with respect to
benefits under laws administered by the Secretary. When
there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of
a matter, the Secretary shall give the benefit of the doubt
to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7 (2006).
The veteran's skin disability has been rated under Diagnostic
Code 7806, pertaining to dermatitis or eczema. Under
Diagnostic Code 7806, a 10 percent rating is warranted for
dermatitis or eczema when at least 5 percent, but less than
20 percent, of the entire body, or at least 5 percent but
less than 20 percent, of exposed areas are affected, or;
intermittent systemic therapy such as corticosteroids or
other immunosuppressive drugs are required for a total
duration of less than six weeks during the past 12-month
period. A 30 percent rating applies when 20 to 40 percent of
the entire body or 20 to 40 percent of exposed areas are
affected; or; systemic therapy such as corticosteroids or
other immunosuppressive drugs required for a total duration
of six weeks or more, but not constantly, during the past 12-
month period. A maximum 60 percent rating is applicable
where more than 40 percent of the entire body or more than 40
percent of exposed areas are affected, or constant or
near-constant systemic therapy such as corticosteroids or
other immunosuppressive drugs are required during the past
12-month period. The rating criteria provide that dermatitis
or eczema are to be rated as disfigurement of the head, face,
or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or
7805), depending upon the predominant disability. 38 C.F.R.
§ 4.118, Diagnostic Code 7806 (2006)
Service connection for tinea versicolor was granted in a May
2005 rating decision, and a 10 percent evaluation was
assigned. A February 2006 rating decision increased the
evaluation to 30 percent, effective May 28, 2004.
The evidence in this case includes service medical records,
post-service VA outpatient treatment records and VA
examination reports. After a review of the evidence and for
the reasons set forth below, the Board concludes that a
rating in excess of 30 percent is not warranted.
VA outpatient dermatology clinic records dated from 2001 to
2004 note a history of fungus on the body. The VA records
contain findings of chronic hypopigmentation on the upper
extremities and trunk, as well as large diffuse patches of
hyperpigmented macules. These records show that the veteran
has used ketoconazole and over-the-counter creams for
treatment.
The veteran had a VA examination in November 2005. The VA
examiner reviewed the claims file. The examiner noted a
history of tinea versicolor and chronic pruritis. The
examiner noted that during the preceding 12 months the
veteran was treated with ketoconazole daily for 10 days and
had maintenance with ketoconazole shampoo and cream. The
examiner diagnosed tinea versicolor. The examiner opined
that this condition affected 25 percent of the entire body.
The veteran had a VA examination in March 2005. The examiner
interviewed the veteran. The veteran reported that his skin
condition is present constantly and that the affected areas
itch constantly. The veteran reported that this condition
was treated with two doses of ketoconazole in the preceding
year. He reported that this treatment transiently improved
his symptoms and did not cause any side effects. On physical
examination, the examiner noted hyperpigmented scaly patches
on the neck, trunk, arms and legs. The examiner observed
that approximately three percent of exposed surfaces and five
percent of the entire body surface area was involved.
The veteran presented testimony in support of this claim in
an October 2006 video hearing. He stated that he has itching
and irritation of his skin that is worse in the summer
months. The Board acknowledges the veteran's statements in
this regard. The veteran has also submitted several lay
statements describing his symptoms and indicating that his
skin is irritable and itchy in the summer. However, as noted
above, in making a determination regarding an increased
rating, the Board may only consider the specific criteria of
the rating schedule. See Massey, supra.
Applying this evidence to the rating criteria set forth
above, the Board concludes that the evidence does not support
a rating in excess of 30 percent. Diagnostic Code 7806
provides for a 60 percent evaluation where the evidence
demonstrates that more than 40 percent of the entire body or
more than 40 percent of exposed areas are affected, or that
constant or near-constant systemic therapy such as
corticosteroids or other immunosuppressive drugs are required
during the past 12-month period. There is no medical
evidence demonstrating that tinea versicolor affects more
than 40 percent of the entire body or more than 40 percent of
exposed areas or has required constant of near-constant
systemic therapy such as corticosteroids or other
immunosuppressive drugs during a 12-month period. Therefore,
the requirements for a 60 percent evaluation are not met.
The rating schedule is designed to accommodate changes in
condition; therefore, the veteran may be awarded an increased
evaluation in the future should his skin disability picture
change. See 38 C.F.R. § 4.1. At present, however, a 30
percent evaluation is the most appropriate given the medical
evidence of record.
For the foregoing reasons, the Board concludes that the
criteria for an evaluation in excess of 30 percent for tinea
versicolor have not been met. In reaching this decision, the
Board considered the complete history of the disability at
issue as well as the current clinical manifestations and the
effect the disability has on the earning capacity of the
veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. The Board also
considered the applicability of the benefit-of-the-doubt
doctrine. However, as there is not an approximate balance of
positive and negative evidence, reasonable doubt could not be
resolved in the veteran's favor. As there is a preponderance
of the evidence is against the veteran's claim, it must be
denied.
Finally, the Board finds that the evidence does not reflect
that the veteran's tinea versicolor has caused marked
interference with employment (i.e., beyond that already
contemplated in the assigned evaluation), or necessitated any
frequent periods of hospitalization, such that application of
the regular schedular standards is rendered impracticable.
Hence, the Board is not required to remand this matter to the
RO for the procedural actions outlined in 38 C.F.R.
3.321(b)(1) (2006) for the assignment of an extraschedular
evaluation.
B. Service connection for residuals of generalized viral
infection
Applicable law provides that service connection will be
granted if it is shown that the veteran suffers from
disability resulting from an injury suffered or disease
contracted in line of duty, or for aggravation of a
preexisting injury suffered or disease contracted in line of
duty, in active service. 38 U.S.C.A. §§ 1131 (West 2002).
That an injury occurred in service alone is not enough; there
must be chronic disability resulting from that injury. If
there is no showing of a resulting chronic condition during
service, then a showing of continuity of symptomatology after
service is required to support a finding of chronicity. 38
C.F.R. § 3.303(b). Service connection may also be granted
for any disease diagnosed after discharge, when all the
evidence, including that pertinent to service, establishes
that the disease was incurred in service. 38 C.F.R. §
3.303(d).
Service connection may also be presumed for certain diseases,
as provided in
§ 3.309, if it is shown that the veteran served continuously
for 90 days or more during a period of war or during
peacetime after December 31, 1946, such disease became
manifest to a degree of 10 percent within one year from the
date of discharge, and there is no evidence of record
establishing otherwise. 38 U.S.C.A. §§ 1101, 1112(a), 1113,
1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2006).
Presumptive periods are not intended to limit service
connection to diseases so diagnosed when the evidence
warrants direct service connection. 38 C.F.R. § 3.303(d).
Generally, to prevail on a claim of service connection on the
merits, there must be medical evidence of (1) current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the present disease
or injury. Hickson v. West, 12 Vet. App. 247 (1999); see
also Pond v. West, 12 Vet. App. 341, 346 (1999).
In determining whether service connection is warranted for a
disability, VA is responsible for determining whether the
evidence supports the claim or is in relative equipoise, with
the veteran prevailing in either event, or whether a
preponderance of the evidence is against the claim, in which
case the claim must be denied. 38 U.S.C.A. § 5107(b) (West
2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Service medical records show that the veteran was seen in
October 1955 with complaints of nausea and vomiting, stiff
back and elevated temperature and was transferred to the U.S.
Naval Hospital in Oakland for observation and treatment. He
was diagnosed with generalized viral infection, type
undetermined. Records reflect that the veteran was
discharged to duty in December 1955. The service medical
records are negative for any further complaints or findings
of viral infection. The September 1957 report of separation
examination is negative for any findings of viral infection.
The veteran asserts that he currently has residual symptoms
of the viral infection treated during service. At the
videoconference hearing, the veteran testified that his
current symptoms include itching eyes and upset stomach. He
testified that he has experienced symptoms of stomach upset
since service. The veteran also asserts in written
statements that he has back problems related to lumbar
punctures that were performed during service.
The veteran underwent a VA neurology examination in March
2005. The VA examiner reviewed the claims file. The VA
examiner noted that the veteran was seen in October 1955 with
symptoms of fevers, chills, occipital headaches radiating to
the neck and back and epigastric distress. The examiner
noted that the veteran was admitted to the U.S. Naval
Hospital in Oakland for further evaluation. The examiner
noted that the discharge diagnosis was changed to generalized
viral infection. The examiner noted that the service
discharge examination mentioned no residuals. The examiner
also noted the veteran's history of lumbar surgery in 1978
and 1990 and of diabetes mellitus, diagnosed in the mid-
1990's. The VA examiner interviewed the veteran. The
veteran's complaints included low back pain. The veteran
reported that his low back pain began after he underwent a
lumbar puncture during service. Other complaints reported by
the veteran included numbness and tingling in both feet and
occasional sharp stabbing pains in the right foot.
The examiner diagnosed chronic mechanical low back pain, most
likely secondary to degenerative disc disease involving the
lumbosacral spine; peripheral neuropathy, sensory greater
than motor, moderate in severity, more likely than not
related to underlying diabetes mellitus, type 2; and left
median motor neuropathy at the wrist, likely compressive
(carpal tunnel syndrome).
The VA examiner noted that the veteran suffered an episode of
viral infection with meningeal features during service. The
examiner further noted that the veteran recovered well from
this ailment and that no residuals were noted in the medical
evaluations following the recovery. The examiner opined that
the veteran's low back pain is not causally related to the
lumbar punctures and hospitalization during service. The
examiner stated that the course of the veteran's symptoms and
the nature of the symptomatology suggests symptom causation
secondary to degenerative changes in the lumbar spine. The
examiner further stated that the veteran's evaluation is
consistent with peripheral neuropathy, sensory greater than
motor, moderate in severity. The examiner stated that
peripheral neuropathy is most likely secondary to underlying
diabetes mellitus, type 2 and that there is no evidence to
suggest that it is linked in any way to the viral infection
in service.
As noted above, a grant of service connection requires
medical evidence of (1) current disability; (2) medical, or
in certain circumstances, lay evidence of in-service
incurrence or aggravation of a disease or injury; and (3)
medical evidence of a nexus between the claimed in-service
disease or injury and the present disease or injury. See
Hickson, supra.; Pond, supra. There is no evidence in this
case establishing a link between a generalized viral
infection during service and any current disability. The
veteran's own statements provide the only evidence of a
nexus. The Court has held that evidence that requires
medical knowledge must be provided by someone qualified as an
expert by knowledge, skill, experience, training, or
education. Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
Accordingly, the veteran's own assertions regarding
causation are not sufficient to provide a nexus to service.
The Board notes that the veteran has submitted several
internet articles regarding symptoms and long-term
complications of meningitis. These articles are not
probative evidence of causation, as they do not specifically
relate to the veteran's particular case and in particular do
not contain any analysis regarding the claimed connection
between the viral infection during service and a current
disability. Medical treatise evidence can, in some
circumstances, constitute competent medical evidence. See
Wallin v. West, 11 Vet. App. 509, 514 (1998); see also 38
C.F.R. § 3.159(a)(1) [competent medical evidence may include
statements contained in authoritative writings such as
medical and scientific articles and research reports and
analyses]. However, the Court has held that medical evidence
that is speculative, general or inconclusive in nature cannot
support a claim. See Obert v. Brown, 5 Vet. App. 30, 33
(1993); Beausoleil v. Brown, 8 Vet. App. 459, 462 (1996);
Libertine v. Brown, 9 Vet. App. 521, 523 (1996).
The Board concludes that there is a preponderance of evidence
against the veteran's claim for service connection for
residuals of a generalized viral infection. As the evidence
is not in relative equipoise, the veteran may not be afforded
the benefit of the doubt. Rather, as there is a
preponderance of the evidence against the claim for service
connection, it must be denied.
ORDER
A rating in excess of 30 percent for tinea versicolor is
denied.
Service connection for residuals of generalized viral
infection is denied.
____________________________________________
V. L. JORDAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs